Recently, New York State lawmakers passed a law (Senate Bill 8091 or the Act) providing immediate emergency COVID-19 paid and unpaid sick leave to employees subject to mandatory or precautionary orders of quarantine or isolation provided by authorized issuers, including the State of New York, the New York State Department of Health, local Boards of Health, or any other government entity authorized to issue such an order. As discussed below, employees who are asymptomatic and are able to work through remote access or similar means are ineligible for benefits. The benefits that an employer is required to provide are subject to the amount of employees it had as of January 1, 2020, as well as its net income in the previous tax year. 

Requirements for Employers

According to the Act:

  • Employers with 10 or fewer employees and a net income of less than $1 million are required to provide:
    • Unpaid sick leave for the full length of the mandatory or precautionary quarantine or isolation order; and
    • Guaranteed job protection for the full length of the mandatory or precautionary quarantine or isolation order; and
    • Access to compensation during the period of the mandatory or precautionary quarantine or isolation order through the employer’s existing Paid Family Leave and Disability Benefits insurance policy by filing for benefits.
      • Eligible employees may receive up to $2,884.62 per week (i.e., up to $840.70 in Paid Family Leave and $2,043.92 in Disability Benefits). In other words, while these employees are not entitled to paid sick leave from their employers, they may still receive compensation as set forth above during the period of the mandatory or precautionary quarantine or isolation order by filing for Paid Family Leave and Disability Benefits.
  • Employers with 11 to 99 employees, and employers with 10 or fewer employees and a net income exceeding $1 million, are required to provide:
    • At least 5 calendar days of paid sick leave at the employee’s regular rate of pay, [1] and unpaid sick leave for the remainder of the mandatory or precautionary quarantine or isolation order;
    • Guaranteed job protection for the full length of the mandatory or precautionary quarantine or isolation order; and
    • Access to compensation during the period of the mandatory or precautionary quarantine or isolation order (after exhaustion of the paid sick leave days listed above) through the employer’s existing Paid Family Leave and Disability Benefits insurance policy by filing for benefits.
      • Eligible employees may receive up to $2,884.62 per week (i.e., up to $840.70 in Paid Family Leave and $2,043.92 in Disability Benefits).
  • Employers with 100 or more employees, as well as public employers (as defined by the law) regardless of the number of employees, are required to provide:
    • At least 14 calendar days of paid sick leave at the employee’s regular rate of pay; and
    • Guaranteed job protection for the full length of the mandatory or precautionary quarantine or isolation order.

Note that as it pertains to these employers, the new law is silent as to other available benefits such as Paid Family Leave and Disability Benefits.

Expansion of Definitions under Paid Family Leave and Disability Benefits Laws

The Act also expands the definition of “disability” and “family leave” under Article 9 of the Workers’ Compensation Law (i.e., the Disability Benefits Law and the Paid Family Leave Benefits Law) so that more employees are eligible for benefits:

  • For purposes of the Act only, the term “disability” means “any inability of an employee to perform the regular duties of his or her employment or the duties of any other employment which his or her employer may offer him or her as a result of a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19 and when the employee has exhausted all paid sick leave provided by the employee's employer under this [A]ct.”
  • For purposes of the Act only, the term “family leave” covers any leave taken:
    • “when an employee is subject to a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19;” or
    • “to provide care for a minor dependent child of the employee who is subject to a mandatory or precautionary order of quarantine or isolation issued by the state, the department of health, a local board of health, or any government entity duly authorized to issue such order due to COVID-19.”

Circumstances Where Employees Do Not Qualify for Benefits

There are certain circumstances under which employees do not qualify for COVID-19 paid leave benefits:

  • where they are quarantined but do not show symptoms and are physically able to work remotely or through similar means;

It is unclear whether employees are eligible for sick leave benefits if they are under a mandatory or precautionary order of isolation or quarantine and are physically unable to work remotely or through similar means for reasons that are not health-related (for example, where the employer remains open but cannot provide the employees with the means to work remotely). We will continue to monitor this legislation for any clear guidance that may be provided on this issue. 

  • where their dependent child is under a qualifying quarantine/isolation order, but the employee is able to work remotely or through similar means;

  • where they are quarantined because they voluntarily traveled to a country with a Level 2 or 3 health notice from the CDC (such as China, Iran, most European countries, the United Kingdom, Ireland, Australia, Canada, Brazil, Japan, Israel, Malaysia, and South Korea), the travel was not at the direction of the employer, and the employees knew of the travel health notice and that they would not qualify for sick leave under this law if they were quarantined as a result of such travel;

Where this is the case, such employees are entitled to use their accrued leave, and where such accrued leave is insufficient, the employer is required to provide unpaid leave for the duration of the mandatory or precautionary quarantine or isolation order.

  • where they decide to quarantine but are not under an order from an authorized issuer; and
  • where the federal government provides COVID-19-related sick leave and/or employee benefits, unless the benefits of this new law exceed the benefits provided by the federal government.

Where this is the case, employees would be entitled to the difference between the sick leave and/or employee benefits provided under federal law and this law.

For example, New York’s new law covers employers with more than 500 workers, whereas the federal Families First Coronavirus Response Act (as discussed in our earlier alert) does not. Thus, employees of these larger employers could take full advantage of the benefits under New York’s new law because federal law would not provide them COVID-19 relief.

Additional Points for Consideration

  • Eligible employees do not need to file any applications for the paid sick leave described above because employers who are required to provide the leave must do so automatically and immediately. 
  • Employers may not require employees to use their accrued leave – the paid sick leave above must be provided separate and apart from an employee’s existing accrued leave. 
  • As discussed above, to qualify for benefits, employees need to be under a mandatory or precautionary order of quarantine or isolation, which is to be issued by the State of New York, New York State Department of Health, local Board of Health, or any other government entity authorized to issue such an order. 

The FAQs now provide guidance for obtaining a qualifying quarantine/isolation order. The FAQs instruct employees to seek such orders from their local health department, which is required to provide the requested order within 30 days. Such documentation must contain certain information, as outlined in the FAQs, depending on whether the quarantine/isolation order is mandatory or precautionary.

  • The State has released guidance indicating that an eligible employee may take Paid Family Leave to care for a dependent child under a qualifying quarantine/isolation order. As mentioned above, benefits are capped at $840.70.

  • Employers who receive an application for Paid Family Leave and Disability benefits from an employee must complete their portion of the paperwork within three (3) business days and return it to the employee.

  • Importantly, this new law does not require that employers remain open or stay in business. The law states that it does not “prohibit any personnel action which otherwise would have been taken regardless of any request to use, or utilization of, any leave” provided under the law. The FAQs state that if an employer temporarily closes or goes out of business for COVID-19 related reasons, an employee may seek unemployment immediately. However, the law does protect employees who take leave pursuant to the new law from discrimination and retaliation.
  • Employers should also note that the leave is retroactive in certain circumstances – an eligible employee may take COVID-19 sick leave if they are still currently under a mandatory or precautionary quarantine or order of isolation that was issued by an authorized issuer, even if the order was issued prior to the enactment of the law. 
  • A quick COVID-19 Paid Leave guide is available for employers here. For reference, the guide for employees is available here.

Our attorneys continue to monitor the impact of coronavirus on the markets, and we have developed a dedicated COVID-19 Resource Library to provide insights on regulations and/or changes to the law. Please contact your Pryor Cashman attorney for specific advice or counsel.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.